After Woods explained his plan, he led his six charges down Beretania Street to the health department. There was registered license agents scattered across Hawaii, including government officials and even employees of large resort hotels hosting wedding receptions, but Woods picked the most haunted of the available locations with a view to dramatic confrontations.
A group of journalists were waiting for them under an oleander canopy that shaded the entrance. As Woods watched, each of the three couples accepted and filled out an application. The two of them entered through a door marked MARRIAGE LICENSE and were greeted by a woman at a desk, to whom they presented their completed forms and a fee of $ 25. The case officer calmly said that due to the unprecedented nature of her application, she could not summarily approve the applications as she would with heterosexual couples. She directed the six applicants and their companion to the back of the office to speak to their boss.
The seven visitors crowded into the small office of Robert Worth, the reigning top health status monitor in the state, who, despite his sympathy for the couples’ ambitions, said he could not act without further legal guidance. “We will hold your applications on hold until the Attorney General’s Office gives us a decision on those specific applications,” Worth said. Woods led everyone back at the Blaisdell Hotel to the ACLU office to fill out the organization’s two-page “legal aid application”.
Nobody knew what was going to happen next and the group broke up, unsure if they would ever have a reason to see each other again. Baehr and Dancel retired to a TGI Friday where they had their first date just six months earlier. The two ordered cheeseburgers and considered the dizzying sequence of events. “What was that?” asked Genora Ninia. “What did we just do?
What they had done was a chain of events that in just over five years would send a new legal issue from the fringes of American imagination to Congress and the Oval Office. Within a quarter of a century, the US Supreme Court would finally end the debate. In the intervening years, the question of whether gays and lesbians are allowed to marry has been the country’s most controversial social issue.
But as of December 1990, same-sex marriage was in no way a political or legal issue. There was hardly a public figure in the country who had been forced to argue for or against. (To the extent that there was active disagreement on the matter, it was broadcast in gay and lesbian legal circles, where differences existed in both the principle and strategy of the pursuit of marital law.) For its core constituency until the Hawaii Supreme Court im May 1993 gave the cause an unexpected blessing, the unexpected outcome of the lawsuit initiated by Bill Woods that morning in Honolulu.
Since the landmark decision of the Supreme Court in Obergefell v. Hodges, which made same-sex marriage the law of the country in 2015, there was a standard impetus to believe that this breakthrough was the result of a deliberately planned national strategy to achieve a long-defined goal of civil rights. But the truth is more chaotic. The defining social movement of the 21st century began as a public relations stunt, hatched by a relentless and enterprising local activist who competed with rivals for control of a single event planning committee.
The history of gay activism in Oahu, Hawaii’s most populous island was largely the story of Bill Woods’ coming out. He first saw Hawaii while accompanying a friend and her husband on vacation, and the next year he moved from his little Illinois Presbyterian College to the University of Hawaii, where he received a bachelor’s degree in psychology before earning a master’s degree in public health aspired to. Island life offered a fresh start, and from the moment Woods touched down, he decided to speak openly about his sexuality for the first time in his life.
Soon Woods’ public profile was inextricably linked to his status as a gay man. In 1972 he founded a social institution for gays, which he called the Sexual Identity Center, because he did not believe that the prominent, largely heterosexual psychologists and lawyers he sought to join would push their way onto a board whose name was an explicit reference to homosexuality contained. Woods took advantage of the position to put himself at the forefront of Hawaii’s emerging gay community. In 1974, when Oahu held its first Gay Pride Parade, a curiosity for spectators along a Waikiki sidewalk, Woods was there. Years later, he became the first openly gay person to testify before the Hawaii legislature, and then the first to speak at a state Democratic party conference.
Woods happily took up arms during the Culture Wars. When Conservative TV evangelist Jerry Falwell traveled to Hawaii in May 1981 to “save the 50”th State “by opening a chapter of his Moral Majority, Inc. – anyone who stood in his way must be” a Nazi, a communist or a homosexual, “he warned – Woods led a group that beat him to register the name with the state authorities. Their “moral majority of Hawaii,” as newspaper advertisements proclaimed, would defend “family planning, civil rights for all, freedom of choice in abortion, childcare programs, freedom of expression and religion, and the separation of church and state”. While holding a rally outside the state capital, Honolulu, Falwell was confronted by a sheriff with a subpoena: The Moral Majority of Hawaii sued his Moral Majority, Inc. for using their name. Other venues that had agreed to host stops on Falwell’s Hawaiian tour have been canceled, fearing they might become involved in the lawsuit. Before retiring to Virginia, a desolate Falwell gave a farewell speech that mentions only two names: Jesus Christ and Bill Woods.
Woods’ marriage license stunt arose out of a similar feud. In 1989, he began attending meetings of the official Oahu Gay & Lesbian Pride Week Association to argue that the celebrations planned for June 1990 should include a parade. The association’s co-treasurer, Cheryl Embry, was a familiar antagonist of Woods – her Iceland Lifestyle Magazine had started publishing to compete with its more established ones News from the gay community—and she led her fellow board members to reject the proposed parade. Woods immediately formed his own not-for-profit, the Pride Parade and Rally Council, and set about hosting a competitive event. Woods applied for event permission the day before the Association of Pride Week’s scheduled rally, and planned to design an event that would put them in the spotlight. Woods asked the governor to be his grand marshal, play the Royal Hawaiian Band, and a caterer to run an international kitchen festival.
He also planned a wedding ceremony for up to two dozen same-sex couples. Woods was not interested in marrying himself – “Bill was not a great romantic,” says friend Terry Gregson, “and not a great believer in monogamous relationships” – but understood the iconic power of such a spectacle. He sought legal advice from the ACLU, but their leadership in Hawaii was cautious about being drawn into any of Woods’ plans. During the summer and fall of 1990, ACLU officials dismissed his request for help, apparently in hopes that Woods would lose interest and move on to another project. When Woods ran out of patience, he decided to go to the health department with the first couple he could find – in hopes that media coverage would force the ACLU into action.
Twelve days after the three couples Applying for a marriage permit, Hawaii’s Attorney General Warren Price told the Health Department that it was right not to have it issued. Both he and Health Director John Lewin said that while there was no room for recognizing same-sex marriages, the state would work with lawmakers to provide other support to gays and lesbians. For Lewin, the topic triggered “a lot of soul searching”, as he put it, because “the trend among homosexuals is to enter into lasting relationships that are better for themselves and for society”.Nonetheless, he seemed happy that the matter was removed from his sphere. “It’s a legal problem, not a health problem,” Lewin told the media when he received Price’s opinion. “It is not in the hands of the ministry and the legislature.”
However, the couple wanted to go to court first. Without immediate offers of help from the ACLU, Woods led the couple to seek their own lawyer.
When Bill Woods arrived at the Partington & Foley Bar on the 24th floor in search of an ally willing to question Hawaii’s concept of marriage, he delivered less one case to Dan Foley than six plaintiffs looking for one. At first glance, Foley’s office – the walls of which are covered with pictures of his wife and two young children – might as well have been a shrine to the traditional nuclear family. “I never imagined marriage to be anything other than husband and wife, just like everyone else,” he said later. “But I felt like I was married, had children, had the rights and benefits of marriage, who am I to say no to them?”
Foley was already known in Honolulu as a lawyer interested in unpopular, even unimaginable purposes. His road to law was unconventional in itself. A young graduate from the University of San Francisco with experience in antiwar activism and an interest in cultural anthropology, he had joined the Peace Corps and served as an agricultural officer in Lesotho. As Foley saw firsthand how a weak constitution hampered the young country, he gained a new understanding of the rule of law. He returned to the Bay Area to study law and joined a Marin County law firm specializing in civil rights work, honoring Warren Court and its success by using the Constitution as an engine of social change.
His sympathies often turned specifically west across the Pacific. He had first visited Hawaii as a teenager when he was visiting an aunt who had moved to the islands after marrying a Hawaiian. Foley was surprised at how the indigenous peoples were disempowered in terms of statehood and their language and culture banned by a rising political class of resettled outsiders. Upon learning of an opportunity to travel to Micronesia when the archipelago was securing sovereignty from the United States, Foley left his company – “to help them avoid the fate of the Hawaiians,” as he later put it.
By the time Bill Woods walked into his office, Foley had moved to a private practice where the two men had allied themselves on cases of interest to the islands gay community. In the most prominent case, Foley successfully defended the Miss Gay Molokai Pageant after a local official, under pressure from religious conservatives, refused to authorize the hula carnival, citing the potential spread of HIV as a justification.
Even while making a living as a trial attorney, Foley retained the cultural anthropologist’s affect. He wore a neatly trimmed beard and round, narrow tortoiseshell glasses and a high forehead that exposed thick lines when he concentrated. Like many Hawaiians, he usually only wore a suit and tie when he had to appear in court; on days spent in his office, Foley was just as likely to be found in an aloha shirt tucked over jeans. For Foley, however, humility and humility weren’t just aesthetic preferences. Raised Catholic and raised by Jesuits, he converted to Buddhism after marrying a Japanese-Chinese-Hawaiian woman and saw diversity as a central element of the island temperature. “There is no dominant group, religion, race or culture,” Foley said of Hawaii. “That creates tolerance. On the mainland it is clear who is in control. “
Now it was Hawaii’s marriage code that made Foley his most immediate obstacle. On April 12, 1991, each of the three couples received a formal notification that the health department would not recognize same-sex partnerships. State Registrar Alvin T. Onaka’s letter cited chapter 572 of Hawaii Revised Bylaws, the same part of the Code whose gender ambiguity primarily encouraged Woods. “Even if we issued you a marriage certificate, it would not be a valid marriage under Hawaiian law,” Onaka wrote to them all in identical letters. The couple visited Foley and engaged in a long fight. “We’re not happy with the way the state interprets the law,” said Joe Melillo. “We want to make it legal – right.”
The social taboos surrounding gay couples were similar to those that long warranted anti-racial laws, and those who had pondered strategies to legalize same-sex marriages often felt like they did. dressed Loving Virginia. The unanimous decision of the US Supreme Court in 1967 repealed state laws that prohibited interracial marriages on the grounds that such prohibitions had no function other than racial discrimination. “Marriage is one of the ‘fundamental human civil rights’ that are fundamental to our existence and survival,” Chief Justice Earl Warren wrote in his statement. “According to our constitution, the freedom to marry or not marry a person of any other race rests with the person and cannot be violated by the state.”
Foley may have grown up worshiping Warren’s progressive jurisprudence, but he no longer viewed the Supreme Court as a welcoming place for civil rights disputes. In fact, after a decade of Republican presidential appointments, the Bundesbank was sporting a new conservative finish and had proven particularly hostile to sexual minorities. Just five years earlier, in 1986, the Supreme Court upheld state laws criminalizing sodomy.
Just five years later, Foley argued that gay marriage would be an automatic loser if the matter got to federal courts. Instead, he planned to develop a case based solely on the interpretation of state law. In this regard, Foley understood what a useful ally Hawaii’s constitution would prove to be: the state is one of only five in the country that explicitly define a right to privacy. Looking at the language used by the Warren Court in its contraception and abortion rights decisions, the 1978 Constitutional Convention of Hawaii promised in its first article that “the right of the people to privacy will be recognized and not without proof of a mandatory state may be injured “. Interest.”
When Foley listed the six plaintiffs in the lawsuit he filed on the morning of May 1, he was pleased that the alphabet came first with Ninia Baehr’s name. All the information he had about his clients’ backgrounds came from Smalltalk when they first met. But Foley knew immediately that he wanted Baehr – a seasoned activist who, unlike the others, was comfortable with both public speaking and fundraising – as the face of a case that would become known as Baehr v. Lewin.
Foley’s five-page lawsuit called for an injunction and a declaratory judgment so that his plaintiffs would receive the marriage licenses they had been denied. A state court could force the Department of Health to adjust its policies, Foley argued, on the basis that both the same protections and privacy safeguards in the Hawaiian constitution apply to the right of all couples to marry on equal terms.
In November 1991, Judge Robert Klein dismissed Foley’s request, justifying the existing status of marriage between the sexes as “clearly a rational, legislative effort to promote the general welfare of the community.” Klein methodically listed why gays did not meet the requirements for a constitutionally equal class: They were not a politically powerless minority, Hawaii’s “History of Tolerance for All People and Their Cultures” ensured that they were not victims of systematic discrimination and their sexuality was not an “immutable attribute” like race or gender. “Citizens cannot expect government policies to support their lifestyle or their personal choices,” wrote Klein.
Foley had a month to prepare his calling, and he knew he was embarking on a case the effects of which could be felt far beyond the islands. “Should we prevail on these issues before our state Supreme Court, our victory would be beyond question, would be recognized nationally,” Foley wrote in a memo to Woods. “Needless to say, our case is more than a gay rights case. It’s a human rights case.
On October 13, 1992, Dan Foley woke up at 4 a.m. and started the morning with a Buddhist chanting ritual. After that, Foley put on a white shirt, a dark blue pinstripe suit, and a burgundy Christian Dior tie. At about 5:30 a.m. after resetting the alarm for his wife, Foley left the house, wearing his suit jacket and briefcase, and crossed the dark, quiet Pali Highway toward downtown.
When he first put the hearing on his calendar, Foley had expected to appear before a very different Hawaiian Supreme Court. A crazy series of actuarial events that summer – mandatory retirements, promotions, a death, and a resignation – had the majority of the five seats awarded, some more than once. Now there were only two normal session members left, with three years of combined experience in court, and Foley decided to focus his argument on the judiciary he knew best. Years ago he faced Steven Levinson in a lawsuit over a controversial building zone issue in Sandy Beach, with Levinson representing the developer and Foley representing the injured residents. When Foley’s co-attorney tweaked the opposing attorney with an aggressive style, Foley pulled Levinson aside and reassuringly said, “Don’t talk to him, talk to me.”
Now they would meet in a different courtroom as two bearded 46-year-old children of the 1960s, both proud members of the ACLU. (Levinson discreetly maintained his membership even while he was on the bench, in violation of ethical guidelines.) When Foley began scribbling notes on a yellow notepad for an opening speech in September, he had Levinson as his audience in mind. He knew that if he couldn’t convince Levinson, he probably wouldn’t get any other justice. If he could get Levinson, it would be the job of the judiciary to get two of his colleagues to a majority.
In a dark, empty 24thth-Floor Office, Foley read the opening argument aloud and took his time. After finishing it twice, less than 20 minutes each, Foley sorted his papers into a pile, gathered up his prayer beads, and turned his chair so that it faced a back wall toward his house in Kailua. He started another Buddhist chant, and for an hour and a half thought only of the opening argument, focusing his will on the goal of doing well and communicating clearly to the judges. At 8:15 a.m., he opened the door to find his office vibrating with life. Foley gathered his office mates and made his way to Aliiolani Hale, the 19th-century building that houses the highest echelons of the Hawaiian judiciary.
Just before 8:45 a.m., Foley reached the wooden front door of the courthouse and climbed two steps to the floor of the Supreme Court. On his way inside, Foley navigated a collection of media that had gathered in the hallway outside the chambers, larger than any other he had seen before. He took one of two seats at a table to the right of the dais opposite the Chief Justice and put down the three files that had been filed in the case, his handwritten oral argument, and a yellow notepad for notes. On the opposite table stood two assistant attorneys-general, Judy So and Sonia Faust, who Foley was familiar with on other lawsuits against the state.
As the complainant, Foley was responsible for leaving first. His first words on the dais were written to realign the case with what Foley saw as his natural standard.“It’s not just about whether or not homosexual couples can marry,” he began. “This is about homosexuals and their rights to privacy, equal protection and due process under the Hawaii Constitution.” Foley told the judges they would not even hear him referring to the Constitution of the United States guaranteed rights. “The applicants admit that they could not prevail in a federal court,” he continued.
The implication was clear. This was a civil rights case, the consequences of which for an injured minority went far beyond the clause in the Hawaii Statute that laid down the requirements for marriage. Foley’s admission of weakness in federal courts was actually his own concern for the vanities of the five men before him. No appeal from them could stand Baehr v. Lewin in federal courts, and no judge would have to worry about the eventual degradation if the Supreme Court rejects its argument. All three men on the bench were on the verge of enacting laws extending rights for Hawaiians that couldn’t be easily taken away. Foley invited his contemporaries on the bench to do something brave.
Foley had put his handwritten script on the podium, but he had read it through so many times that he could almost everything by heart. When Judge Walter M. Heen took on the role of Foley’s antagonist and challenged the lawyer as to whether the preliminary court decision had really encroached upon a fundamental freedom – “the right to exercise any sexual orientation” – Levinson politely interrupted the conversation and led the conversation to another place. As Foley had hoped, Levinson appeared to be on his side and quietly guided the attorney on the desired path with limited interference or delay. With Levinson’s help, Foley engineered his answers to cover most of the points he had made for his testimony. When he finally found a pause in the interrogation, Foley paused and asked to reserve the rest of his time for a rebuttal, then turned back to his seat as Faust rose from hers and approached the dais.
She had barely started her oral argument for a minute when the judge on her left spoke for the first time that day. “Put it another way,” James S. Burns told her. “They don’t want you to discriminate You.”
“Our position is that we do not discriminate against them,” she replied.
“Okay,” Burns followed. “A man and a woman come in and they are not married and want a license; you give it to them. A man and a man come in wanting a license; you won’t give it to them. You discriminate against them. “
“Our position,” said Faust, “is that this is permissible discrimination.”
Foley felt his skin quiver and harden as he witnessed what the Hawaiians considered Chicken skin moment. Foley had always assumed that the appeal was likely to be resolved on procedural grounds without the Supreme Court ever having to deal with whether or not gays and lesbians were deprived of a fundamental right. But to Foley’s surprise, Burns seemed to have accepted this constitutional premise immediately, and emphatically. “That was the first time since I filed the lawsuit,” said the lawyer later, “that I had the feeling that my clients could assert themselves in the matter.”
They did. Six months later, in May 1993, the Hawaii Supreme Court ruled in favor of the plaintiffs, the first time a court in the world had recognized that homosexual couples have a fundamental right to marriage.
Levinson’s majority opinion relied on the argument that Burns himself had made so accessible to a layperson that the central issue was discrimination based on gender, not sexual orientation.
Although the Hawaii Supreme Court ruled in favor of the plaintiffs, that was not the end of the process. The Supreme Court referred the matter back to a lower court where the Hawaiian authorities were required to demonstrate an “imperative state interest” behind the gay and lesbian marriage certificate denial. The burden had suddenly shifted: the state had to find a reason why there should be no same-sex marriage.
It took a while for people outside of Hawaii to fully appreciate the scope of what had happened there. The Church of Jesus Christ of Latter-day Saints was the first major mainland institution to respond, and leaders and activists of other religious denominations soon followed.
Their warnings that the future of the American family in the United States was in the hands of a single judge in court in Hawaii eventually found their hearing in Congress, where lawmakers were working on a bill that would ensure the 49 other states and the states of Die Government could ignore same-sex marriages there.
On September 9, 1996, the trial in Baehr v. Miike– as it was renamed following the appointment of a new state health director – began in Honolulu
On the same day, the Senate passed the Defense of Marriage Act, which was intended to bring the issue to a president’s desk for the first time. The bill defined marriage as only between a man and a woman under federal law, and ensured that whatever happened in Hawaii’s courts would not force another state’s government to recognize gay and lesbian couples married in Hawaii. The law would last until 2013, when a challenge to its constitutionality brought the matter of same-sex marriage to the US Supreme Court.
From THE ENGAGEMENT: America’s Quarter-Century Struggle Over Same-Century Marriage by Sasha Issenberg, will be published June 1, 2021 by Pantheon Books. Copyright © 2021 by Sasha Issenberg.